Lord Mackay of Drumadoon: I have given notice of my intention to speak at this juncture on the question of whether Clause 26 should stand part of the Bill. It is right that I should draw the Committee's attention briefly to the fact that a very different approach is taken on this issue in the Bill as regards Scotland from that which the Committee has been discussing for an hour as regards England.

As regards Scotland, only one new offence is introduced; namely, racially aggravated harassment. That is the purpose of Clause 26, as opposed to what is set out earlier in the Bill in Clause 23 dealing with racially aggravated assaults, public order offences in Clause 24 and racially aggravated harassment also in Clause 25.

Therefore, we are very much in the realms about which the noble Lord, Lord Desai, was talking earlier, of a confusion of motives when part but not all of the ambit of criminal behaviour is being addressed by new offences.

What concerns me about the clause is that, as I understand it, the provision will not allow the Crown in Scotland to prosecute anyone for any form of behaviour which cannot already be prosecuted for under one or other of the criminal offences available at common law. Bringing the new offence to the statute book may be giving a false impression to the contrary effect. In other words, it may suggest that behaviour which is not currently capable of prosecution will now become so.

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As to the position on sentence, because all these offences are common law offences--breach of the peace, assault, malicious mischief and the rest--the maximum sentence in each case is life imprisonment. The reasoning that has lain behind the presentation of Clauses 23, 24 and 25 as regards England--a need to introduce higher penalties because the current penalties available to the court are insufficient--is not applicable.

The only effect that the new clause will have on sentences is that when a man is charged as a first offender in the summary court of Scotland, the maximum penalty would go up from three months to six months. With that minor exception concerning a first offender, the courts will have no greater powers of sentence. It will be for the trial judge in the appropriate court to impose the sentence he considers appropriate. Obviously the powers will vary, depending on the court in which the case is brought by the prosecutor, but it will give no greater sentencing power to the judges. I say to the Committee that there is not the same justification in Scotland for bringing forward new offences as there is in England.

Next, I should like to look at what the consultees said--the "views on the ground", as the noble and learned Lord the Solicitor-General described them. As I indicated at Second Reading, all three branches of the police force do not support the need for such offences. Having regard to the hour, I do not wish to go into the matter in great detail. The chief constables take the view that the current law is sufficient. They say,

"By placing the requirement to prove racial motivation on the prosecution, the creation of statutory offences could actually make convictions more difficult to obtain".

The Police Federation likewise does not support the idea and nor do the superintendents. The Church of Scotland's position is of interest. It states,

"If, as the consultation paper suggests, a new statutory offence would not necessarily help the courts or the police, then there would be no purpose in introducing such legislation".

A number of counsel who responded were concerned that the additional burden of proving the necessary ingredient of racial motivation might lead to,

"a higher rate of inappropriate acquittal".

Various branches of the judiciary oppose the idea. The Sheriffs' Association said,

"We believe the creation of a new statutory offence to be unnecessary. It seems to us that what is contemplated would essentially be a public relations exercise".

"What is proposed is unnecessary, contrary to principle and unwelcome".

Sheriff Principal Bowen said that he was concerned,

"about any proposal to introduce the need to establish motive as a critical element".

The noble and learned Lord, Lord Rodger of Earlsferry, made a similar point in a letter he wrote to the Secretary of State for Scotland which was deposited with the consultation responses. He drew attention in particular to the fact that, by singling out this type of motivation for treatment, one might send the wrong signal to other victims of society. He mentioned those

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who are assaulted because of a specific sexual orientation and, as he said, crimes with a sectarian motivation have been the bane of Scottish society for many years.

Undoubtedly, racial motivation is a vile matter. But so is the motivation founded upon religion or a perception of belonging to a specific religion. I regret to say, I have had many years of practical experience of people who were assaulted quite out of the blue, for no reason at all other than that they were perceived to be Catholics or Protestants--not through any attendance at the church, but because of the football colours they may or may not have been wearing at a specific time.

I am concerned that if this clause is introduced it will give the wrong impression that the law is currently inadequate and cannot address the need to prosecute those who offend. I am concerned that it may be more difficult to bring about a conviction and will give rise to a risk of perverse verdicts. My experience of indictments or complaints with a multitude of charges is that, on occasion, when a conviction results it is the lesser alternative that is chosen and we may end up with people being convicted of less serious charges where the allegation of racial motivation is deleted.

When the Government consulted on this matter in Scotland, they had in mind and suggested a need to introduce a range of statutory offences along the lines that they are doing for England. I am pleased to acknowledge that, while there was some support for that wide-ranging set of proposals in the responses, clearly within Government views have been expressed saying that that was undesirable; that the common law is able to deal with racially motivated violence and some of the other public order offences that we have. Unfortunately, the new offence of harassment crept in. I hope that even at this late stage, it may be possible for the Government to acknowledge that, far from making things better for those who are the victims of racial crime, it may in fact make things worse. It is for those reasons that I speak against the clause.

The Earl of Mar and Kellie: The noble and learned Lord mentioned sectarianism and that is a regrettable part of life in central Scotland. I live 35 miles from both Edinburgh and Glasgow and we suffer from less sectarianism than one may find in the west of Scotland, but it still exists.

When growing up in the 1950s I learnt that the Irish immigrants were the problem. I also noticed that they were Catholics. As it was a cultural and not doctrinal issue, it disturbed me then and disturbs me now. To this day one is asked, "Which school do you go to? Which team do you support?". It is important that we send a message to the public in Scotland that that kind of thinking is getting us nowhere in the creation of a harmonious society.

I shall therefore support the clause. It is important that people grasp the fact that some characteristics we can do nothing about; they are our cultural inheritance and were imposed presumably by our families. But there are other characteristics which we have chosen to take upon

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ourselves and for which it is appropriate that we should be blamed. The introduction of this type of legislation helps to bring about that debate.

Lord Hardie: A number of points have been raised and perhaps I should declare an interest. Speaking as a descendant of an Irish immigrant, I am all too well aware of the prejudices which exist.

In relation to the points made by the noble and learned Lord, Lord Mackay of Drumadoon, about the confusion of motives and the ability of the law at present to deal with the situation, I say simply this. The common law in Scotland does indeed have the advantage of being flexible and much of the behaviour which would constitute racial harassment would be covered by the crime of breach of the peace. However, there may be cases where a charge of racially motivated harassment fits the facts of the case better than would fit a common law charge of breach of the peace.

Moreover, the introduction of the new offence will help to clarify what behaviour is properly deemed to be criminal. It is necessary that not only should all members of the public receive the protection of the law, but also that possible offenders understand what behaviour society will not tolerate. This statutory offence will make things clearer for possible victims, for the police and for possible offenders. It does not undermine the use of the common law offence of breach of the peace and the prosecution policy will be to consider which is the more appropriate in the specific circumstances. We are simply adding a provision which will bolster the protection from crime which we already try to give to the public.

In relation to the various responses, there are a number of issues. I accept that the police authorities and the legal bodies opposed the introduction of such an offence. However, a number of other respondents certainly favoured such an offence, including particularly those social work departments and other bodies involved with ethnic minorities who were concerned about the apparent lack of the law to deal properly with the problems which some ethnic minorities suffered in Scotland. I quote from the response to the consultation paper from the Commission for Racial Equality:

"The Scottish criminal justice system has not created the confidence that it is dealing adequately with racial harassment and racially motivated crime. While the common law may have certain advantages, its use has not sent out a clear public message that racial harassment and racially motivated violence is wholly unacceptable in Scotland".

If that is the impression of the Commission for Racial Equality, if that is the impression of ethnic minorities in Scotland, I am ashamed that the law does not meet the needs of those minorities. That one response of itself would justify the creation of this offence.

As for the noble and learned Lord, Lord Rodger of Earlsferry, the Lord President, I accept, as did some of my noble friends earlier, that there are other matters which ought to be addressed--religious bigotry and bigotry based on someone's sexual orientation--but what must be borne in mind is that we are dealing here with racial harassment and racial offences. It is easy to

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identify such offences because they are related to the colour of someone's skin and to his or her ethnic background, whereas if one were to extend the protection to other forms of bigotry it might be more difficult to identify. I am not saying that we should shy away from that, but, as my noble friend Lord Williams of Mostyn said, we should not throw away the protection from racial harassment simply because there ought to be protection from harassment for other minority groups. We will address these matters at an appropriate time, but, in the meantime, I would urge the Committee to agree that the clause should stand part of the Bill.